Notice to the Profession - Re: Lawyers Acting on Indian Residential Schools Claims

Many Indian Residential Schools Claims appear to be settled or close to settlement. The sheer volume of claims, the unique nature of these settlements, and the vulnerability of the clients, has resulted in a large number of inquiries about the lawyer client relationship and about the way fees and disbursements are charged in these cases. This Notice is intended to set out the Law Society’s position with respect to some of the frequently asked questions:

Rule 2.06(1) of the Code of Professional Conduct specifies that the lawyer must not charge or accept a fee or disbursement unless it is fully disclosed, fair and reasonable and has been disclosed in a timely fashion. Implicit in this rule is the requirement that the client understands the fee and the basis upon which it is being calculated. Accordingly, lawyers ought to ensure that all fees and disbursements are clearly communicated to the claimant in a way that is understandable.

It is apparent that some lawyers/firms represent a large number of claimants and are in the process of resolving a large number of claims. It is important to keep in mind that Rule 2.06 applies to each and every client and it is imperative to ensure that each client is fully informed as to the fee that is being proposed and by whom it is being paid.

Clients have the right to terminate the lawyer client relationship at will. If the lawyer is acting on a contingency basis when that happens, then the contingency agreement governs what fees and disbursements the client will be responsible for when the lawyer is discharged. If the lawyer intends to have the client pay outstanding disbursements prior to transferring the file, the agreement must clearly set this out. Furthermore, regardless of what the agreement says about the calculation of fees in the event that the lawyer is discharged, it is improper to require the client to pay the fees at that time, as the fee is only collectible at the successful conclusion of the matter.

Some claimants who have contacted the Society have expressed concern that they feel intimidated or discouraged from switching counsel and are unclear with respect to their right to change counsel and how it will affect their claim. Lawyers are reminded of Rule 2.07(5) which requires the discharged lawyer to do all that can reasonably be done to facilitate the orderly transfer of the matter to the successor lawyer. Furthermore, upon discharge or withdrawal, the discharged lawyer must comply with the requirements of Rule 2.07(6).